Chevalier v. L.H. Bossier, Inc.

• Decision Date: 05 May 1993
• Docket Number: No. 92-888,92-888
• Citation: Chevalier v. L.H. Bossier, Inc., 617 So.2d 1278 (La. App. 1993)
• Parties: Ralph CHEVALIER, Plaintiff-Appellee, v. L.H. BOSSIER, INC., et al., Defendant-Appellant.
• Court: Court of Appeal of Louisiana

Page 1278

617 So.2d 1278

Ralph CHEVALIER, Plaintiff-Appellee, v.L.H. BOSSIER, INC., et al., Defendant-Appellant.

No. 92-888.

Court of Appeal of Louisiana Third Circuit.

May 5, 1993.

Katherine Marie Loos, Lafayette, for L.H. Bossier, Inc. et al.

Joseph Texada Dalrymple, Robert G. Nida, Alexandria, for Ralph Chevalier.

Before DOUCET, YELVERTON and COOKS, JJ.

DOUCET, Judge.

This is an appeal by a statutory employer and its insurer from a judgment of the Office of Worker's Compensation in favor of a worker's compensation claimant.The claimant, Ralph E. Chevalier, was initially injured on November 26, 1985 while working for L.H. Bossier, Inc.(L.H. Bossier) as a truck driver.

The accident occurred when Mr. Chevalier drove his eighteen wheel dump truck onto the shoulder of the highway to avoid a headon collision with another vehicle.When he did so, the load of asphalt that he was carrying shifted, causing the truck to overturn completely.After overturning, the truck slid across the highway on its roof and came to rest on the opposite side of the road against some trees.

Mr. Chevalier attempted to return to work approximately three months after the accident, but he was unable to continue driving, because of pain in his right shoulder, and later, his back.He eventually underwent surgery on his shoulder and lower back and subsequently developed rheumatoid arthritis.He also severely sprained his left ankle when his back gave out on him on one occasion.He has not worked since his attempt to return to his former employment shortly after the accident.

The current dispute began when Mr. Chevalier sought a second opinion from physicians at the Tulane Medical Center in New Orleans, Louisiana.The worker's compensation insurer, Reliance Insurance Company of Illinois (Reliance), initially authorized the evaluation but subsequently refused to pay for the examination and reports of the physicians or the costs of the diagnostic procedures that they ordered.Mr. Chevalier filed a disputed claim with the Office of Worker's Compensation, and L.H. Bossier and Reliance responded by seeking the termination of his weekly benefits and his right to payment of certain medical expenses.

Following a hearing, the Office of Worker's Compensation rendered a judgment awarding Mr. Chevalier comprehensive relief, including:

(1) $7,440.25 in medical expenses associated with his evaluation by physicians at Tulane Medical Center;

(2) $5,000.00 in attorney's fees for the Reliance's arbitrary and capricious refusal to pay for the examinations and reports of the physicians at Tulane Medical Center;

(3) A declaration that the medical expenses associated with his rheumatoid arthritis are compensable under the worker's compensation laws of the State of Louisiana;

(4) An order that L.H. Bossier and Reliance pay for all medications related to the treatment and care of his accident related injuries, including any and all medications for the treatment of his rheumatoid arthritis;

(5) An order that L.H. Bossier and Reliance pay for a complete evaluation by Dr. Phillip Osborne's Pain Clinic in Shreveport, Louisiana; and

(6) A declaration that he is entitled to benefits for temporary, total disability.

On appeal, L.H. Bossier and Reliance have assigned as errors the granting of each element of this relief.The standard of our review of the hearing officer's conclusions is the manifest error-clearly wrong standard.Woods v. Borden's Perkins Division, 610 So.2d 219(La.App.3rd Cir.1992).

THE COSTS OF THE EVALUATION

Dr. Stanley Foster, an orthopedic surgeon from Alexandria, Louisiana, has treated Mr. Chevalier for orthopedic problems since May of 1988.In August of 1990, Mr. Chevalier discussed with Dr. Foster the possibility of being evaluated by physicians at Tulane Medical Center for the chronic pain that he was experiencing.Dr. Foster agreed that another evaluation might be beneficial and made the referral.

Reliance initially refused to authorize a second evaluation but subsequently gave its consent.On August 20, 1990, Katherine M. Loos, counsel for Reliance, sent a letter to Mr. Chevalier's attorney, Robert G. Nida, which provided in pertinent part:

"I spoke with my client this morning who has apparently had a change of heart with regard to Ralph Chevalier being examined by a physician in New Orleans.My client advises me that he is willing to guarantee payment for an evaluation and a report concerning the physician's findings.My client is specifically not guaranteeing payment for any treatment which may be recommended until a second opinion has been obtained."

Mr. Chevalier subsequently made the four hour trip to New Orleans, Louisiana, where he was examined and evaluated by Dr. Michael Brunet and Dr. Thomas Whitecloud, III, both of whom are professors of orthopedic surgery.The doctors felt that additional diagnostic testing was required to make their evaluation, and they recommended immediate hospitalization, which would permit them to perform the tests and relieve the pain that Mr. Chevalier was experiencing from the trip.However, when Reliance was contacted, its adjuster refused to authorize the testing.In order to avoid a second painful trip to New Orleans, Mr. Chevalier furnished proof of hospitalization insurance through his wife's employment and was admitted for the testing.

The hearing officer determined that Reliance is liable for the costs of the evaluation by the New Orleans physicians.Her reasons for that conclusion were explained in her written Notice of Judgment, as follows:

"Mr. Nida's letter of August 3, 1990 to Ms. Loos clearly states a request for authorization of payment to 'these physicians in New Orleans'; Mr. Barousse initially said he would authorize this if Dr. Foster made a referral and then tried to back out of his agreement when the referral was given.There is no evidence to suggest that Mr. Nida had anything to do with the request to get a second opinion from New Orleans and Dr. Foster seemed to wholeheartedly agree.As the letter of August 20, 1990 from Ms. Loos to Mr. Nida guarantees payment for an evaluation and report, and it can be presumed that the insurer has had enough experience with orthopedic evaluations to realize that tests are going to be needed and did not refuse in its guarantee to pay for tests, only treatment; the bills for tests, evaluation and report are to be paid."

Reliance argues on appeal that the hearing officer erred in finding that its attorney authorized diagnostic testing in her letter of August 20, 1990.Reliance further argues that Mr. Chevalier is precluded from recovering the expenses of the testing, because its adjuster made it clear that Reliance did not consent to the testing prior to Mr. Chevalier's admission to the hospital.The latter argument is based on LSA-R.S. 23:1142, which currently imposes a ceiling of $750.00 on the expenses that can be incurred for nonemergency diagnostic testing and treatment without the approval of the payor.

At the time that this claim arose, LSA-R.S. 23:1142(B) did require prior agreement or approval of medical expenses, but the $750.00 limit was not in effect.The applicable statute is the one in effect at the time of the claimant's injury.Hutchinson v. Livingston Wood Products, 562 So.2d 883(La.1990);Villagomez v. Howard Trucking Co., 569 So.2d 1006(La.App.3rd Cir.1990);Ramos v. Southwest Louisiana Electric Membership Corp., 536 So.2d 713(La.App.3rd Cir.1988);Miller v. J.P. Owen Co., Inc., 509 So.2d 1038(La.App.3rd Cir.1987), writ denied514 So.2d 455(La.1987);Williams v. State, 489 So.2d 461(La.App.3rd Cir.1986).

The hearing officer found that the actions of Reliance's adjuster in refusing to guarantee payment when Mr. Chevalier was admitted to the hospital amounted to a withdrawal of its earlier agreement to pay.We cannot say that she was clearly wrong in doing so.

It is not uncommon for treating physicians to seek consultations from other doctors, and our jurisprudence recognizes that a physician who is treating a worker's compensation claimant may seek such consultations as are medically necessary to determine the claimant's course of treatment for work-related injuries.Whittington v. Rimcor, Inc., 601 So.2d 324(La.App.2nd Cir.1992);Robinson v. State Farm Fire & Casualty Insurance Co., 404 So.2d 306(La.App.3rd Cir.1981), writ denied409 So.2d 637(La.1981).

In Robinson, supra, this Court held:

"Unlike the situation where a plaintiff is sent to a physician by his own attorney simply for evaluation for trial, Robinson was referred by Dr. Sills, the attending physician, to Dr. Rambach presumably for his evaluation and recommendations because of plaintiff's additional complaints.It is clear that this examination was not made simply in connection with litigation.We believe it was a necessary medical expense for which the employer is liable."Id.404 So.2d at 308.

That reasoning applies in the present case.The hearing officer correctly noted that Mr. Chevalier's attorney apparently had nothing to do with the referral, which was made by his treating physician, Dr. Foster.Whether or not the idea for the referral originated with Mr. Chevalier is immaterial.Dr. Foster, in the exercise of his professional judgment, agreed that the consultation might provide guidance for the treatment of Mr. Chevalier's persistent complaints of pain.

On appeal, Reliance concedes that it authorized the evaluation by the physicians at the Tulane Medical Center and does not seriously contest that it was medically necessary.Its arguments are confined to the diagnostic testing, which it claims were not shown to have been necessary.

The record contains letters from Drs. Whitecloud and Brunet to Dr. Foster explaining the diagnostic tests that were performed and the reasons why they were deemed necessary.Copies of the reports from the tests are attached.The consulting physicians who ordered the tests clearly felt that...